Abstract
This Comment critiques the D.C. Circuit Court of Appeals’s practice of utilizing a case-by-case approach to determining whether an individual detained at the military facilities of Guantanamo Bay, Cuba is considered “part of” the Taliban or al-Qaeda. The 2010 case of Bensayah v. Obama was among the first to grant a writ of habeas corpus to a Guantanamo detainee and therefore acts as an outer boundary in determining a more concrete standard for determining who is “part of” the Taliban or al-Qaeda. In articulating such a standard, this Comment proceeds first by analyzing previous case law and examining the four indicia commonly used to determine a detainee’s status. In light of this case law, including the recent Bensayah decision, this Comment then proposes a balancing test to replace the current case-by-case method as a more reliable and predictable means of determining whether a detainee is “part of” the Taliban or al-Qaeda.
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Metadata
- Subject
Common Law
National Security Law
- Journal title
Boston College Third World Law Journal
- Volume
31
- Issue
3
- Pagination
E. Supp. 17
- Date submitted
7 September 2022